Oosthuizen, R. v

A sentencing court must have regard to relevant Sentencing Guidelines Council guidance under the Criminal Justice Act 2003, although that duty does not require mechanical adherence. A court should not increase sentence for purported local prevalence without statistics or other evidence showing a prevalence greater than nationally, particularly where national guidance applies. An offender caught red-handed should not, for that reason alone, receive less credit for a guilty plea; the normal sliding scale applies. A failure to direct that eligible remand time counts under section 240(3) should normally be corrected in the Crown Court, rather than used to challenge an otherwise appropriate sentence.

The applicant pleaded guilty at Guildford Crown Court to robbery. Two further offences, theft of a mobile telephone and obtaining goods by deception with a stolen credit card, were taken into consideration. He received two years’ detention in a young offender institution.

His application for leave to appeal against sentence was referred by the Registrar to the Full Court. He challenged the starting point, the effect of the new licence arrangements, the use of local prevalence as an aggravating feature, and the reduction of guilty-plea credit because he had been caught red-handed. A further issue concerned the absence of a quantified direction that his 28 days in custody should count under section 240 of the Criminal Justice Act 2003.

1. Appeal dismissed. The court corrected its initial order. It upheld the two-year sentence and directed under section 240(3) of the Criminal Justice Act 2003 that the 28 days spent on remand in custody should count as time served.

2. Section 172(1)(a) required the sentencing judge to have regard to relevant Sentencing Guidelines Council guidelines. A judge or constitution of the Court of Appeal might disagree with an aspect of a guideline, and a guideline need not be followed in every case. It could not, however, be disregarded. The approach in R v Stockdale, Flynn and Tankard, which questioned the need for external evidence of local prevalence, could not justify ignoring the statutory duty.

3. Without statistics or other evidence establishing that an offence was more prevalent locally than nationally, an experienced local judge should not assume that local prevalence warranted greater deterrence. The judge was therefore not entitled to increase sentence beyond what national guidance indicated was appropriate for this type of offence.

4. The normal guilty-plea sliding scale applied even where the offender had been caught red-handed. The contrary observation in R v Greenland [2002] EWCA Crim 1748 was no longer authoritative. Remorse remained distinct from a guilty plea and could separately reduce culpability as personal mitigation.

5. Despite those sentencing observations, the court found no excess or error of principle in the two-year term. A three-year starting point was not too high for this planned street robbery when the two offences taken into consideration were also borne in mind. The changed licence arrangements did not make the short sentence excessive.

6. For future cases, where a Crown Court omits a required section 240(3) direction, counsel should ordinarily seek variation within 28 days under section 155 of the Powers of Criminal Courts (Sentencing) Act 2000. Such an omission would not usually found an appeal where the sentence itself was appropriate.

• Court of Appeal (Criminal Division): In [2005] EWCA Crim 1978, the court ultimately dismissed the appeal against the two-year sentence. It amended its initial order and directed that 28 days in custody should count as time served under section 240(3) of the Criminal Justice Act 2003.

• Guildford Crown Court: On 6 May 2005, Judge Bull QC imposed two years’ detention in a young offender institution following the applicant’s guilty plea to robbery, with two further offences taken into consideration.